pebadger

I'm going to miss complaining about WMLW. It was convenient outlet for a lot of other frustrations.

I think another thing that has to be taken into consideration with the Brewers TV deal is the fact that stuff is just less expensive here than it is on the coasts or in places like Chicago. Advertising rates on Brewers broadcasts simply have to be in line with rates charged for other local broadcasts in the market. Even with smaller absolute viewership a team like the Nats is going to make more on their deal just because they're getting more per ad than are the Brewers. In fact, lower viewership is not necessarily a horrendous situation for the Nats or Padres once you take the idea of competing with the big markets off the table because the Nats or Padres can actually compete on price for advertisers in the DC/SD markets. Obviously they want to maximize revenue, but so long as they stay ahead of their most direct baseball competitors in terms of revenue they're still ahead of the game from a baseball standpoint, even with revenues that aren't as good as they could be in a given market. If you can turn that revenue advantage into a superior on-the-field product, you can then further harness the untapped potential of your already larger market. And because this dynamic potentially exists, it makes it easier to sell in the first place because you can provide incentives for advertisers to "get in early" so that they too can benefit if/when viewership spikes due to success of the club. Turn that around and the high Brewer numbers can actually be seen in a bad way. Where is the room for audience growth? What extra value can the Brewers sell to advertisers? Don't mean to be a downer about this, but the market size is what it is and the revenue potential is subject to some pretty binding constraints.

My guesses as to why it's taking a long time to get a decision: 1) There is/was a genuine dispute regarding the decision among the arbitration panel. 2) The complex nature of the case means that, regardless of the decision, it is necessary for the written decision supporting the case to be as cogent and thorough as possible. Having a solid written opinion is especially necessary to protect the integrity of the program in this case where it has to be expected that the decision will be subject to public scrutiny given the unfortunate public nature of the case. It's also important because one of the very few ways to challenge an arbitration decision in a court of law is to challenge the throughness and "professionalism" of the process. A well-constructed written decision will virtually eliminate that potential. 3) Depending on exactly what rules are in place for the arbitration, the panel may have done some further investigation on its own to clarify facts critical to the decision. Unlike a court of law, the panel is not always limited to using only evidence presented at the hearing in forumlating its decision. 4) If the vote is 2-1 in either direction, the dissenting panel member may be constructing his own written opinion as a vigorous defense of either MLB or Braun. Note that these are not all mutually exclusive. I think a number of these reasons, and probably others, are playing a part in the delay. I have no doubt that MLB is insisting that the written decision look and sound as professional as possible. No matter which way this things goes the worst possible outcome for them is this process looking like some half-baked kangaroo court. In my opinion MLB's first priority has always been protecting the process. Once this case became public the emphasis on protecting the process only increased. I'm not saying that this means the decision is fixed: they can protect the integrity of the process no matter which way the decision comes down.

There is no substance that would lead to a positive test of synthetic testosterone that is legal for players to take. If Braun was taking some form of synthetic testosterone without the consent of MLB, then that would be a violation of the rules. In theory, something like alcohol consumption could skew a carbon isotope test for exogenous testosterone, but not enough to skew the results to what ESPN has been reporting. EDIT: http://www.tomsarazac.com/tom/opinions/testosterone_d13C.html This is a link to a blurb about alcohol and synthetic T. The author is as much of an expert as I am, so take it with a grain of salt. I think a clarifiction is in order here. I don't believe we have heard any information on the specific results of the CIR testing in terms of positivity criteria. When the intial report came out that Braun had a very high testosterone level, I'm virtually certain that the report was referring to a high T/E ratio on the preliminary "tripwire" test, which is a different test than the CIR. Any number of things can send a T/E ratio out of whack, which is why the testers rely on GC-CIR to really nail down a violation. It's harder to really jack up a CIR positive. There simply isn't that much C13 out there in relation to C12, even in manufactured substances. If a CIR test comes back with a delta value well beyond the level of a normal positive, that would tend to indicate that the result is probably unreliable because it is either a statistical anomaly or simply a botched test. If the info that Braun tested postive for something that is neither a steroid nor a masking agent is correct, I'd love to see exactly what the positivity criteria were on the CIR. As the link notes, and as I've posted before, making the claim that a CIR test is a positive is still a purely statistical conclusion, though most often a very compelling conclusion. At some point, however, when none or few of the other facts tend to support the conclusion suggested by the statistical result, a reasonable person has to at least pause before relying only on the statistics to destroy a man's reputation.

The number of arbitrators is set as it is because the system is not especially interested in extended wrangling. The international system is set up to streamline "convictions" while maintaining an facade of impartiality. At the international level, from where this system is adopted, the idea that the 3rd arbitrator is neutral is nothing more than a smoke screen. I don't have a lot of citations for you, but there are numerous articles out there highlighting how the system is set up to slant the panel against the athlete in drug cases. One of them was written by a Wisconsin district court judge who took great interest in and observed the public Floyd Landis hearing a few years back (one of the rare opportunities we've been provided to see how this stuff really works). How it works with respect to MLB we don't know, and that's pretty much how they want it. Nice that there is so much transparency in the system, right?

You would need to know exactly which tests are being talked about, and nobody who is trafficking in these stories seems to be too specific about any of it. An alternative explanation is that the people in the media who might have this info aren't sharing it because it's not an easy subject to explain, it muddies the simpler black/white narrative, and explaining too much might expose their sources/leaks. I still tend to think that a lot of what we are hearing generally about this being an odd case is true, but nobody on the MLB side of this cares about that too much because they have their 'positive' and that's all they really need. It's on Braun to try to make sense of it all. MLB aren't going to cry about the result one way or another. If Braun wins, they claim it shows the system is just. If Braun loses, they claim that the system is working and that they aren't afraid to take down the biggest names in the game. The only way MLB loses is in creating doubt about the system by questioning it themselves.

Hate to see him go, but understand it had to happen. Given that, this all couldn't have worked out much better for the Brewers. Oddly enough, this is the year the Brewers play most of the ALC teams in interleague, but they don't play the Tigers.

Yes, it's really semantics. The concept of an appeal in the sense that we associate with the American judicial system doesn't really apply here. From that perspective, this isn't really an appeal. He's really just taking the only opportunity he has to contest the summary administrative action that would have led to his suspension given the finding of the lab. Cynic that I am about this stuff, I think the use of the word "appeal" in constructing the system was a conscious choice to make the entire procedure sound more fair and weighty than it really is, as if there is some elaborate system of protections and processes in place to make sure this all gets done correctly. As a matter of fact, however, there really isn't. The testing agency is presumed to be correct with only the barest of evidence. In international cases at the Court of Arbitration for Sport, the arbitration panel itself is stacked in favor of the testers by nature of the way it is assembled. In that venue much of this stuff is only for show, providing the appearance of the existence of a remedy for someone who beleives he has been wronged by what is otherwise a highly inflexible system. The enitre system as constructed along that CAS model simply doesn't mesh well with American notions of justice. It also doesn't mesh well practically in the context of US professional sports where the power/economic relationships between leagues/clubs/players are much different than they are in sports like track, swimming and cycling. Indeed, in European soccer, where those power/economic relationships are much more analogous to relationships that exist in major US team sports, the soccer governing body (UEFA) and the anti-doping folks at WADA have had long-running battles over much of the same ground we've covered here in this thread. It was only the serious problems of the recent past, and the intrusion of a misguided and grandstanding Congress into the issue that caused the union to buckle under and agree to a deal that was not really in their own interest. I say that firmly believing that taking strong action against doping is very much in the union's interest. They just ceded way too much ground on an issue they were ill-equipped and very poorly positioned to fight over at that time. Frankly, with so much money at stake in the CBA, I think they just made the determination that it was going to be worth heaving a few guys under the bus in the future to get a deal done rather than worrying about all the things they would have had to deal with in getting a better Drug Agreement in place, not least of which would have been the strong accusations that would have accompanied the stories framing MLBPA's efforts in that regard as "weakening the drug test proposal".

This. Did you see how they subtly changed the title of that piece after it was published? First it was "Braun should give back award." Tweaked, it was "Braun should OFFER to give back award". Of course the article itself, accusatory and convinced of intentional cheating as it was, didn't really change.

Some speculation: It is very possible that 2 other Brewers may have had "strange" T/E levels but that subsequent GC-IRMS testing indicated no prohibited substances or evidence of synthetic T. If that is the case, my reading of the Joint Drug Agreement is that an "abnormal" T/E ratio, in and of itself, is not a violation of the Agreement. Here's what I'm piecing together from what I'm hearing: the entire case against Braun rests only upon the CIR finding of synthetic T. The GC test apparently indicated that Braun had something in his system, but that something is not a problem (not a PED, not a masking agent). If it were, whoever leaked the bigger picture likely would have leaked the specific prohibited substance as identified by the GC result. Instead, we just have evidence of synthetic T, origin unknown. As we know, the origin is irrelevant to the finding, and the lab reported a "positive" on that basis alone (a position I've been espousing here for a while). That's where the mystery comes in. Nobody, except Braun, really cares about the "Why?" here. How solid is this positive? Was it just barely a positive in terms of the positivity criteria? How many metabolites indicated a positive? Which metabolites? How does what they found in terms of the CIR relate to the substance that has apparently been identified but which is neither a PED nor a masking agent? If these other alleged elevated T/E results do indeed exist, how, if at all, does that fact tie in to the story? If this case is going to take longer than usual to come to a conclusion, I'm guessing that all of these issues were raised by Braun's team and possible explanations offered.

Assuming Braun is taking a legitimate medication to treat a legitimate medical condition and he gets suspended anyway, there will be (or at least there should be) a whole lot of questions asked of a whole lot of people on both sides of the issue. TH's latest column implies that MLB is saying that if the facts are as assumed, the adverse analytical finding is still Braun's fault that he didn't clear things with the Brewers. If the only document in play in this regard is the Joint Drug Agreement, and there isn't some other document that further clarifies the process, I see no requirement on Braun's part that he clear things with the team in terms of receiving personal medical treatments. Provided he did his due diligence regarding the taking the medication without applying for a TUE but received bad advice from otherwise competent people who anyone would rely on, MLB might be opening its own can of worms in terms of how the union will approach the process in the future. The union, if it still has any backbone, would certainly have interests at stake here, but the whole issue of drugs and drug testing has them cowed a bit. Sooner or later the union will have to take a stand on one of these cases, just to show they haven't completely abdicated their responsibility to provide at least some protection to the players with respect to this process. I expect he'll be suspended, because that how these things always work out, but if the facts are really as strong as the Braun camp is making them out to be, they need to push hard afterwards to look at all their options moving forward, including finding ways to shed light on the entire process. If they're going to lose the fight, they may as well do their best to control the story after the fight is over, while keeping their options open to continue the fight in different venues. From my reading of the JDA, the confidentiality provisions regarding Braun's case imposed by the JDA will end when the case is resolved. It could be very interesting to see what might come out after the decision if either party is dissatisfied with the result.

Thanks for the link, Hawing. I tend to doubt that this case gets settled via some sort of compromise, but again it's hard to come to really solid conclusions without knowing more of the solid facts. The biggest problem for MLB is that the whole thing got leaked. My belief is that they simply don't want to look weak in any way and the leak practically forces their hand in this matter. They're in a "must win" situation. I agree with Carroll that transparency is a major issue here, but I disagree with his conclusion. I guess I'm too cynical to think that MLB will ever want MORE transparency with respect to the process. As such, any resolution of any dispute that tends to demand more transparency in the process will be disfavored for exactly that reason. I would love if the entire process were much more transparent. I believe transparency would provide significant benefits to all stakeholders: players, clubs, MLB, fans and the scientific community involved in the process. Players would expose themselves to more immediate public scrutiny when accused, but those who have reasonable defenses to accusations of doping would also be much better served than they are now. Increased transparency would provide an opportunity for increased understanding. Increased understanding of the process would provide an opportunity to improve the process in a number of ways. I guess I'm also too cynical to think that that kind of improvement is something that all the stakeholders really want, especially when the system they have in place now satisfies their objectives.

There is nothing to gain by revealing personal medical information before the conclusion of the case. If he wins the appeal, he will have revealed nothing of a personal nature and avoided suspension. If he loses the appeal, he then has a decision to make (assuming the case has anything to do with a personal medical issue). Reveal his side of the story to the public in hopes of shedding light on the suspension, or just take the suspension and retain privacy (provided somebody hasn't already leaked the particulars of his story when he makes his argument on the appeal).

Let's assume a player takes a question to MLB about a given prescription medication before he starts taking it. What in the JDA imposes any obligation on MLB to provide a definitive answer to the question of whether the drug is OK? There is nothing in the JDA that says MLB has to give an answer. Indeed, they aren't really equipped to give an answer. They aren't in the business of "approving" drugs for use. They don't do investigative chemistry or original science. All they do is collect urine samples and send those samples out for tests. The only thing that the JDA does is enumerate (non-exhaustively) a list of what is banned and establish the procedures and punishments for using something that is banned. The closest MLB comes to "approving" a drug for use is the "therapeutic use exemption" process, but that process provides no privacy to the player at all. In fact, it requires him to fully waive his privacy with respect to the need to take the medication. A TUE must be issued to a specific player given his specific medical condition and treatment program, as supported by documentation from the physician, and it covers only a specific substance. If a specific drug is not on the list, why would a player even apply for a TUE? And why would MLB grant a TUE for something that is not believed to be banned? The moment they issue a TUE for something not on their list is the moment they will begin to be flooded with TUE requests for everything and anything not specifically on the list by players and agents who "just want to be sure". That's simply not what MLB wants and it's not going to happen. The system is designed to put a great burden on the player to "stay clean". Given that virtually exclusive responsibility, there has to be some point at which justice demands, in cases of honest dispute, that a player not be punished for an inadvertent technical violation of the JDA if that violation could not be foreseen after taking reasonable efforts to avoid a violation.

That's the 50-day multi-million dollar question. I don't think that anybody reasonably believes that an athlete must disclose every medication he takes to MLB. In fact, he's under no obligation to disclose any medication he takes, except as such a medication may impact the JDA. So, how far does an athlete have to go in investigating medications that are legally prescribed to him for a legitimate medical reason? That's not a question that impacts only Ryan Braun. It seems to me that the JDA does not overrule a player's basic right to medical privacy. If the arbitration panel were to rule that the only way to know for sure that taking a medication will not put the player in violation of the JDA is to check first with MLB, without regard to whatever advice he is given by his personal physician and other medical advisors on the matter, they would be ruling, in effect, that a player must choose between his personal privacy concerns and his profession every single time he receives a prescription. Is that where we're willing to go to catch whatever percentage of guys it is that will be caught under the testing program? We don't even know that this is an issue in the case, but regardless of that fact it's a question worth considering.

He is the right person to ask general questions about doping. He's the wrong guy to ask specific questions about Ryan Braun or anyone else when he has no more information about the case than you or I. All he can do is speculate, and he does so from a position of assumed guilt. I respect his body of knowledge, and not much else. On another note: From the interview that Mass Haas linked with Michael Weiner, executive director of MLBPA, on the breach of confidentiality: "It’s unfortunate that it didn’t work that way this time but I’m confident that our confidentiality processes will work going forward." Really? What's to stop any future leaks? There is no provision in the JDA to enforce the confidentiality provision. It's basically left up to the good will and discretion of the people holding very juicy information. Let's just say I'm less confident than Mr. Weiner.

Victor Conte is a convicted felon and self-promoting blowhard. He's one of those guys who was so dirty himself that he can't see the world from any but his own perspective. Conte knows a lot of stuff, especially about what it takes to be a cheater. What he knows about integrity, or what he would understand about that concept, I have no idea. I'm not saying Braun is guilty and I'm not saying Braun is clean. What I am saying is that I'd expect Conte to say everyone is guilty. For a lot of reasons.

Assuming this appeal is medically related, and that people involved in the appeals process probably had a good idea that it was as soon as the appeal was filed, it leads me to believe whoever leaked this isn't only dishonorably violating the confidentiality provisions of the JDA, they are likely acting with malice as well. Not "malice" in the legal sense associated with libel/defamation, but just in the sense that somebody leaked with the intent to injure, as opposed to some acting out of some misguided notion of a public "right to know". If all that were true, and I had money like Braun has, I might think about costing some other people some money in defending themselves. He probably can't win against most defendants, but if he could use the case as a way of finding the source of the leak, the leaker would clearly be the most vulnerable to some sort of liability. The JDA contains confidentiality provisions, but contains nothing as to how those provisions are to be enforced. Seems to me that it would be easy to convince a judge that private civil enforcement would be the best recourse for anyone who is damaged by a breach of confidentiality.

Manny's situation is a potentially a bit different in that he's coming back off the voluntary retired list and effectively suspended himself for an entire season and is getting 50 games on top of that. You can look at that situation from a number of viewpoints. In any event, being on the 'retired" list, but without having gone through the more formal retirement process, adds a twist to that case. Whether it should? I don't know. Would have to look at all the language related to the retirement process.

I haven't seen anything in the JDA that allows for flexibility in the "sentence" imposed for a given violation of the program. I don't recall seeing any provision that allows the Commisioner's office (which holds all power/responsibility for imposing discipline under the JDA) any discretion in the matter, except in the case of bans imposed after a third offense. PED penalties are strictly 50-100-lifetime ban. That's actually a good way to run that part of the program, which means it stands in stark contrast to a lot of the rest of the agreement.

What if the medication you are taking is not specifically on the list? Here is the language from the Joint Drug Agreement (JDA): Any and all anabolic androgenic steroids covered by Schedule III of the Code of Federal Regulations’ Schedule of Controlled Substances (“Schedule III”), as amended from time to time, shall be considered Performance Enhancing Substances covered by the Program. Anabolic androgenic steroids that are not covered by Schedule III but that may not be lawfully obtained or used in the United States (including “designer steroids”) shall also be considered Performance Enhancing Substances covered by the Program. In addition, certain hormones and agents with antiestrogenic activity shall be considered Performance Enhancing Substances covered by the program. The following is a non-exhaustive list of substances that shall be considered Performance Enhancing Substances covered by the Program: followed by a "non-exhaustive" list of 58 substances (both specific and general) that are prohibited. Here's a hypothetical. Braun goes to a doctor seeking treatment for a legitimate medical condition. The doctor prescribes X. Assume Braun asks the doctor and his agent for advice with respect to taking X and compliance with the JDA. He gets advice that X is not a PED. As such, Braun decides that as a matter of personal privacy he does not want to disclose that he is taking X. (He is under no obligation to disclose taking non-prohibited substances). This is the JDA language regarding the use of otherwise banned substances for legitimate medical reasons: 1. A Player authorized to ingest a Prohibited Substance through a valid, medically appropriate prescription provided by a duly licensed physician shall receive a Therapeutic Use Exemption (“TUE”). . . . A urine sample which is found to contain a Prohibited Substance will not be deemed a positive test result if such sample was provided by a Player with an effective TUE for that substance. A Player with a TUE for a Prohibited Substance does not violate the Program by possessing or using that substance. There is then some language as to how one goes about getting a TUE, followed by this: 3. A TUE shall be effective from the date the Player notified, or caused the issuing physician to notify, the IPA of the existence of the prescription involved, and shall not be effective for any use or possession of a Prohibited Substance prior to that date. A Player who is determined not to qualify for a TUE may not challenge a determination that he violated the Program by contending, in connection with a “no fault or negligence” defense or otherwise, that he believed he would qualify or had qualified for a TUE; however, a Player is not otherwise precluded from introducing evidence of medical treatment in support of such a challenge. The language of this point may be crucial. If it has been determined that a player does not qualify for a TUE, he can't raise that issue to challenge a finding that he violated the Program, but what if there has been no determination, since no TUE was applied for? Suppose the player can show that he has a medical condition and that he has a valid prescription for an accepted treatment for that condition. Suppose that the player and the doctor both testify that the player specifically inquired about taking the drug and whether taking the drug might present any issues under the JDA. Suppose that the doctor and other advisors to the player, after examining the language of the JDA, that the drug contained no banned substances and that it was not necessary for him to disclose the prescription to MLB, nor was it necessary for him to apply for a TUE. (In a best case scenario, this conclusion would be supported in writing). Would Braun be able to argue "no fault or negligence" under such circumstances? The last clause of Section 3.G.3 ("however, a Player is not otherwise precluded from introducing evidence of medical treatment in support of such a challenge") seems to anticipate that such an argument can be made in the event that there has been no formal determination as to the issuance of a TUE. The bigger question, of course is whether it's a potential winning argument. On the one hand, especially in light of how complicated all this stuff is, it is impractical at best and patently unfair at worst to expect the player to have personal expertise in matters related to the JDA. As such, if he takes X after reasonable investigation of the substance and he relies on the advice of doctors and other advisors that taking X will not put him in violation of the program, what else can the player do? MLB will argue that the underlying principle of the agreement is the imposition of strict liability on the player and that the actions of his advisors and agents (using "agent" in the broader legal sense) does not absolve him of his liability. In the end, the decision to take the substance still rested upon the player, and the "no fault or negligence defense" must be narrowly construed to include only those circumstances which are further beyond the player's control than simple reliance on advice from his own agents. To hold otherwise, MLB will argue, would open to great a "loophole" in the JDA. Of course, even making such an argument would require a lot of things to be true. First, whatever X is, it would have to be something that is not specifically on the list of banned substances. Second, it would also have to contain something that is banned but that the existence of that particular "something" would not be apparent after reasonable, competent investigation. Third, you need to prove that such an investigation was made by the player/his agents in connection with the decision to start taking X as prescribed for treatment of a medical condition in the absence of a TUE. If you don't prove a prior/contemporaneous investigation, I think you're sunk. Showing you looked into the matter only after the fact would imply negligence, and you have to prove "no negligence". Finally, you have to win the rest of the arguments in the case. Most importantly, you have to show that X is what caused the positive test result. If I'm MLB, I ask why the test subsequent to the positive turned up "clean" if X was the cause of the first positive. Then you have to prove that you had stopped taking X for some reason, or why X caused a positive on one test but not another. The bottom line is, even if Braun has a really good explanation for the positive, and even if people understand he's not a "cheat" as most people understand that word, he's still got an awful lot of heavy lifting to do to avoid a suspension. Even if he has all his ducks in a row in terms of evidence to support his argument, it's quite possible that the arbitration panel will simply rule that the actions/omissions of Braun's agents do not distance Braun from the strict liability imposed by the agreement. If that's what ends up happening, Braun better hope that the panel provides a written decision that somehow ends up "leaking" to the press, or nobody will ever know the circumstances of the suspension.

What I'm saying is that that provision is hopelessly one-sided and reveals what a lot of the process and procedure is about: protecting the testing program. The language of that provision provides an 'out' for MLB in terms of the confidentiality provisions, but provides the player with nothing similar. 1) Per the general confidentiality provisions of the joint drug agreement, neither side is supposed to be saying anything right now. That's why they aren't, and why we don't have anything to further the discussion other than mostly scurrilous rumors. 2) What the highlighted language says is that if the PLAYER makes comments about the testing program, MLB is free to say whatever they want (or nothing at all) in response to counter what the player says. They can make this kind of response and still be in compliance with the agreement. 3) If something "leaks" about the process, the player is still bound by the general confidentiality provision and isn't permitted to saying anything about the process in his own defense, no matter how inflammatory a leak might be. If he does respond, he is in violation of the agreement. Notice that the highlighted provision doesn't say that the player can respond if his interests are impugned. It says that the player can respond if the player says something about the program, which is basically a meaningless statement. In other words, as long as MLB never officially makes a statement, details/allegations could mysteriously "leak" out about this case every day and MLB wouldn't be in violation of the agreement. But as soon as Braun says ANYTHING about the case that could be considered making MLB look bad, he would be considered in violation of the confidentiality clause, and this would open the door to MLB legally being able to say/release whatever they want in order to counter anything they view as necessary to protect the testing program.

Can you explain to me what it means? You have had to explain pretty much all of this to me http://forum.brewerfan.net/images/smilies/smile.gifFocus on this : to the [/i]extent necessary to respond to any inaccurate or misleading claims by that Player [/i]that could undermine the integrity and/or credibility of the Program.[/i] MLB can go public with stuff if they want to respond to the Player saying mean things about the drug program. The Player can also respond if the Player is saying mean things about the drug program.

Thanks for posting that jeffy. I think everyone should read it very closely to understand exactly what it really means.

Let's turn this on its head. Why isn't everyone who is clamoring for Braun to "just tell us the truth" also asking the same of MLB? The only "truth" that really matters to this case, short of MLB having an unimpeachable eyewitness to Braun actually using banned substances, lies in the test results and the accompanying procedural documentation. If Braun is going down, he's going down on the strength of numerical data. That data isn't changing. They aren't printing up new chromatograms. MLB is in control of all that information right now. If their case is indeed airtight, what would be the harm in releasing the results, especially if Braun waives any objection?